THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Murder: Degrees & Elements
1. Murder: Malice v.
Anger Or Rage
2. Murder:
Malice/Accident; Accident As Mitigating Factor
3. Intent To Kill Must
Exist Immediately Prior To Fatal Act
4. Intent To Kill Can Be
Abandoned
5. Intent to Kill:
Defendant’s Statements Should Be Viewed With Caution
6. Murder: Jury Not
Required To Draw Intent Inference From Firing Of Gun
7. Murder For Hire:
Elements
8. Murder For Hire:
Defendant Must Share Intent To Kill With Actual Killer
9. Jury Must Find Beyond A
Reasonable Doubt That Defendant’s Conduct
Was Practically Certain To Result In
Victim’s Death
10. Murder: Degree Resolved
In Defendant’s Favor
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Murder: Malice v. Anger Or Rage
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence that the defendant,__________ (name of defendant), was mad or angry on the evening of the shooting. You may, if you wish, consider evidence of the defendant's anger as making it more likely, or less likely, that the defendant had the malice aforethought which is one element of the crime charged in the indictment. You may also consider whether such anger made it more or less likely that the defendant premeditated the shooting death of __________ (name of victim), which is another element of the charged crime.
However, you must not confuse anger or rage with the element of malice aforethought or the element of premeditation, for anger or rage are not necessarily malice aforethought or premeditation, which have been defined for you in these instructions.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
See NCJIC 255.3 [Heat Of Passion/Hot Blood, Provocation].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Murder: Malice/Accident; Accident As Mitigating Factor
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
(name of victim) was an accident, you must find __________ (name of defendant) not guilty of the offense charged in the indictment. However, you may consider whether the accident was caused by malice aforethought, as that term has been defined in these instructions, in considering the lesser offense of second degree murder, and you may consider whether the accident was caused by recklessness or gross negligence in considering the lesser offense of involuntary manslaughter.If after considering all the evidence, there remains in your mind a reasonable possibility that the shooting of __________
AUTHORITIES:
Thomas v. United States, 419 F.2d 1203 (D.C. Cir. 1969).
RELATED NCJIC MATERIALS:
See NCJIC generally Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
See NCJIC 252.2 [Accident].
NCJIC 305.1.3 [Accident].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Intent To Kill Must Exist Immediately Prior To Fatal Act
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for the jury to find __________ (name of defendant) guilty of first degree intentional homicide it must find beyond a reasonable doubt that at the instant before the trigger was pulled __________ (name of defendant) intended that this shot kill __________ (name of victim) .
While the jury may, if it wishes, consider evidence that at some prior time __________ (name of defendant) intended to kill someone, this evidence can only be considered if it assists the jury is finding whether __________ (name of defendant) had the intent to kill immediately before the shot was fired.
If all that the prosecution has proven is that at some earlier time __________ (name of defendant) had an intent to kill, but has not proven that this intent existed immediately prior to the firing of the shot which killed __________ (name of victim) , then the prosecution has not proven __________ (name of defendant) guilty of first degree intentional homicide.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Intent To Kill Can Be Abandoned
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Just as a defendant can be found guilty of first degree intentional homicide if the intent to kill is formed the instant before the act which causes death, the intent to kill can be abandoned in the instant before the fatal act. If the evidence you have heard concerning __________’s (name of defendant) abandonment of an intent to kill creates in your mind a reasonable doubt that in the instant before the commission of the act which caused the death of __________ (name of victim) , __________ (name of defendant) did not intend that __________ (name of victim) be killed, then __________ (name of defendant) cannot be found guilty of first degree intentional homicide as party to a crime.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Intent to Kill: Defendant’s Statements Should Be Viewed With Caution
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
While you may consider any statements made to the police by __________ (name of defendant) concerning an intent to kill __________ (name of victim), you are instructed that such out-of-court statements by a defendant should be received with caution and considered with care.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 28: Out Of Court Statements By Defendant.
See generally NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Murder: Jury Not Required To Draw Intent Inference From Firing Of Gun
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Under ordinary circumstances most persons know that when a gun is fired at another human being there is a high probability that such person will be killed. It is because of this common knowledge that a jury is permitted to consider the firing of a gun under such circumstances as evidence of the shooter's intent to kill.
However, this inference of an intent to kill from the fact of firing a gun at another, is not conclusive. That is, the law does not require the jury to draw this inference.
In determining whether this inference is reasonable the jury may, if it wishes, consider other experiences the defendant has had in firing weapons and whether it was reasonable for (him/her), based on these experiences, to infer that the person whom (he/she) shot would probably be killed.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 65: Natural And Probable Consequences.
See generally NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Murder For Hire: Elements
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for the State of _________ to prove its case, you must find that the following facts have been proven beyond a reasonable doubt:
(a)__________ (name of defendant) asked __________ (name of agent or actual killer) to have __________ (name of victim) killed.
(b)__________ (name of defendant) gave __________ (name of agent or actual killer) __________ (consideration for crime, e.g., $10,000) for the purpose of [killing the victim] [having the money delivered to the killers].
If these facts have not been proven beyond a reasonable doubt, then, as a matter of law, __________ (name of defendant) is not guilty.
[Evidence of __________’s (name of defendant) dislike of __________ (name of victim) [and __________ (additional alleged motive for killing e.g., (his/her) litigation with __________ (name of victim) does not tend to prove any of the elements of this crime.]
RELATED NCJIC MATERIALS:
See NCJIC Chapter 67: [Solicitation].
See NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
See NCJIC 92.18 [Murder-For-Hire].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Murder For Hire: Defendant Must Share Intent To Kill With Actual Killer
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
You have heard evidence of actions taken by __________ (name of defendant) inconsistent with an intent to murder __________ (name of victim). Before you can convict __________ (name of defendant) of being a party to the crime of first degree intentional homicide, you must find beyond a reasonable doubt that at the time __________ (name of actual killer) committed the fatal act, __________ (name of defendant) shared (his/her) intent that __________ (name of victim) be murdered. That is you must first find beyond a reasonable doubt that __________ (name of actual killer) had this intent at the time of the fatal act and further find that __________ (name of defendant) shared this intent. While __________’s (name of defendant) intent to kill prior to the fatal act may permit the inference that this intent continued up to the time of the fatal act, this inference is not required and you should consider all of the evidence you have heard whether __________ (name of defendant) agreed with __________ (name of actual killer) that __________ (name of victim) be murdered at the time that __________ (name of actual killer) committed the act which caused __________’s (name of victim) death.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 67: [Solicitation].
See NCJIC Chapter 92: Homicide.
See NCJIC 92.7.2 [Intentional Murder: Intent And Malice Issues].
See NCJIC 92.7.2.7 [Intentional Murder: No Accomplice Liability For Intentional Murder Unless Perpetrator Intended To Kill].
See NCJIC 92.18 [Murder-For-Hire].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Jury Must Find Beyond A Reasonable Doubt That Defendant’s Conduct Was Practically Certain To Result In Victim’s Death
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to find __________ (name of defendant) guilty of first degree intentional homicide for the shooting of __________ (name of victim), the jury must find beyond a reasonable doubt that __________ (name of defendant) was aware that (his/her) conduct was practically certain to result in the death of __________ (name of victim) .
The prosecutor has not proven that __________ (name of defendant) is guilty if it has merely proven that a reasonable person would have been practically certain that a shot fired under these circumstances would kill __________ (name of victim). It must prove that __________ (name of defendant), given (his/her) age, maturity, sophistication, mental condition and lifetime experiences, was practically certain that (his/her) conduct would kill __________ (name of victim).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 65: Natural And Probable Consequences.
See generally NCJIC Chapter 92: Homicide.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Murder: Degree Resolved In Defendant’s Favor
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
When, upon the trial of a charge of murder, the jury is convinced beyond a reasonable doubt from the evidence that the crime of murder has been committed by the accused, but has a reasonable doubt as to whether the murder was with premeditation or without, the jury should of course give the accused the benefit of that doubt, and return a verdict of guilty of murder in the second degree, not murder in the first degree.
RELATED NCJIC MATERIALS:
NCJIC 265.4.2 [Reasonable Doubt As To Greater Charge Must Should Be Resolved In Favor Of Lesser].